Is it appropriate for an agent to appear before a Notary Public to execute notarial attested documents?
It is often the practice that the parties to a notarial deed do not appear in person before the notary, but appoint an agent in terms of a Power of Attorney to appear before the notary.
In the cases of Ex parte Moodley and Another and Ex parte Iroabuchie and Another 2004 (1) SA 109W, an agent appeared before the Notary Public for the execution of an Antenuptial Contract and the judge frowned upon this practice.
Decision of the Court
The court held that in circumstances where parties appointed an agent to appear on their behalf before a notary, the notary public who executes the contract may not know whether the parties to the contract fully understand the nature and consequences of same and, therefore, unless there is proof of urgency to justify their absence, the parties should appear personally before the notary for the signing thereof.
The Court further held that the notary public could not be satisfied that the contracting parties have been fully apprised of the matrimonial regime into which they were entering, as the notary public had not met the parties and had not explained the various options open to them in respect of their marital regimes. The Court stated that the relevant notaries had put themselves at risk in that one or both contracting parties could say they never signed the document, never knew what they were signing, did not intend that which is contained in the document or that the document was never explained to them and that they do not wish to be bound thereby.
The Court deprecated such situations where the parties to a notarial contract appoint an agent to sign same on their behalf and placed great emphasis on the importance of the obligations of the Notary when notarising contracts which the Court stated not only creates a presumption of accuracy of such contracts, but also allows for public reliance thereon.
Although the above cases are relevant to antenuptial contracts, all notarially attested agreements should be signed by the parties in the presence of the notary and not by an agent in their stead unless urgency can be proved.
In the case of Incorporated Law Society v Kantor 1914 TPD 510, De Villiers JP held that it is the duty of the court to make Notaries realise that their duties are of the greatest importance and strictly personal.
It is trusted that the warning explicated in the said referred to cases once again highlights the importance of the office of the Notary Public and that Notaries take heed.
Property Law Consultant